2021 Supreme(SC) 386

SUPREME COURT OF INDIA
DHANANJAYA Y. CHANDRACHUD, M.R. SHAH, JJ.
The State of Kerala – Petitioner
Versus
K. Ajith & Ors. – Respondents
Criminal Appeal No 697 of 2021 @ SLP (Crl) No 4009 of 2021 and Criminal Appeal No 698 of 2021 @SLP (Crl) No 4481 of 2021
Decided on : 28-07-2021

IMPORTANT POINTS
(1) Public prosecutor may withdraw from a prosecution not merely on the ground of paucity of evidence but also to further broad ends of public justice. Public prosecutor must formulate an independent opinion before seeking consent of court to withdraw from prosecution.
(2) Immunities and Privileges of MLAs. A person committing a criminal offence within precincts of House does not hold an absolute privilege.
(3) Section 197 of Cr.P.C. applies only if public servant can be removed from office by or with sanction of government. MLAs cannot be removed by sanction of government, as they are elected representatives of people of India.
(4) Acts of destruction of public property are not privileged under first limb of Article 194(2) of Constitution. Acts of vandalism cannot be said to be manifestations of freedom of speech and be termed as “proceedings” of Assembly.

Headnote:

(A) Criminal Procedure Code, 1973 – Section 321 – Withdrawal from prosecution – Section 321 entrusts decision to withdraw from a prosecution to public prosecutor but consent of court is required for a withdrawal of prosecution – Public prosecutor may withdraw from a prosecution not merely on the ground of paucity of evidence but also to further broad ends of public justice – Public prosecutor must formulate an independent opinion before seeking consent of court to withdraw from prosecution – While mere fact that initiative has come from government will not vitiate application for withdrawal, court must make an effort to elicit reasons for withdrawal so as to ensure that public prosecutor was satisfied that withdrawal of prosecution is necessary for good and relevant reasons – In deciding whether to grant its consent to a withdrawal, court exercises a judicial function but it has been described to be supervisory in nature – While determining whether withdrawal of prosecution subserves administration of justice, court would be justified in scrutinizing nature and gravity of offence and its impact upon public life especially where matters involving public funds and discharge of a public trust are implicated – In a situation where both trial judge and revisional court have concurred in granting or refusing consent, Apex Court while exercising its jurisdiction under Article 136 of Constitution would exercise caution before disturbing concurrent findings – Court may in exercise of well-settled principles attached to exercise of this jurisdiction, interfere in a case where there has been a failure of trial judge or of High Court to apply correct principles in deciding whether to grant or withhold consent. (Para 23)

(B) Constitution of India – Articles 105 and 194 – Immunities and Privileges of MLAs – A person committing a criminal offence within precincts of House does not hold an absolute privilege – Instead, he would possess a qualified privilege, and would receive immunity only if action bears nexus to effective participation of member in House – Whenever a claim of privilege or immunity is raised in context of Article 105(3) or Article 194 (3), Court is entrusted with authority and jurisdiction to determine whether claim is sustainable on anvil of constitutional provision – Neither Parliament nor State legislatures in India can assert power of self-composition or power to regulate their own constitution in the manner claimed by House of Commons or in UK. (Paras 32 and 42)

(C) Criminal Procedure Code, 1973 – Section 321 – Indian Penal Code 1860 – Sections 447 and 427 read with Section 34 – Prevention of Damage to Public Property Act 1984 – Section 3(1) – Constitution of India – Articles 105 and 194 – Withdrawal from prosecution – There has been a growing recognition and consensus both in this Court and Parliament that acts of destruction of public and private property in name of protests should not be tolerated – Persons who have been named as accused in FIR in present case held a responsible elected office as MLAs in Legislative Assembly – In same manner as any other citizen, they are subject to boundaries of lawful behaviour set by criminal law – No member of an elected legislature can claim either a privilege or an immunity to stand above sanctions of criminal law, which applies equally to all citizens – Purpose and object of Act of 1984 was to curb acts of vandalism and damage to public property including (but not limited to) destruction and damage caused during riots and public protests – Purpose of bestowing privileges and immunities to elected members of legislature is to enable them to perform their functions without hindrance, fear or favour – These privileges bear a functional relationship to discharge of functions of a legislator – They are not a mark of status which makes legislators stand on an unequal pedestal – Privileges and immunities are not gateways to claim exemptions from general law of land – Entire foundation upon which application for withdrawal under Section 321 was moved by Public Prosecutor is based on a fundamental misconception of constitutional provisions contained in Article 194. (Paras 51, 52, 55 and 56)

(D) Criminal Procedure Code, 1973 – Section 321 – Indian Penal Code 1860 – Sections 447 and 427 read with Section 34 – Prevention of Damage to Public Property Act 1984 – Section 3(1) – Constitution of India – Articles 105 and 194 – Withdrawal from prosecution – True function of court when an application under Section 321 is filed is to ensure that executive function of public prosecutor has not been improperly exercised or that it is not an attempt to interfere with normal course of justice for illegitimate reasons or purposes – Court will grant its consent if it is satisfied that it sub-serves administration of justice and purpose of seeking it is not extraneous to vindication of law – It is broad ends of public justice that must guide decision – Public prosecutor is duty bound to act independently and ensure that they have applied their minds to essential purpose which governs exercise of powers – Whether public prosecutor has acted in good faith is not in itself dispositive of issue as to whether consent should be given – Good faith is one and not the only consideration – Court must also scrutinize whether an application suffers from such improprieties or illegalities as to cause manifest injustice if consent is given – CJM was justified in declining consent for withdrawal of prosecution under Section 321 – To allow prosecution to be withdrawn in face of these allegations, in respect of which upon investigation a final report has been submitted under Section 173 of Cr.P.C. and cognizance has been taken, would amount to an interference with t normal course of justice for illegitimate reasons – This cannot be countenanced as being in aid of broad ends of public justice – It is not duty of this Court, in an application under Section 321 of Cr.P.C, to adjudicate upon evidentiary issues and examine admissibility or sufficiency of evidence – Appeals dismissed. (Paras 58, 59, 84 and 85)

(E) Criminal Procedure Code, 1973 – Section 197 – Sanction for prosecution of Public servant – Section 197 of Cr.P.C. applies only if public servant can be removed from office by or with sanction of government – However, MLAs cannot be removed by sanction of government, as they are elected representatives of people of India – They can be removed from office, for instance when disqualified under X Schedule of Constitution for which sanction of government is not required – Sanction under Section 197 is only required before cognizance is taken by a court and not for initiation of prosecution. (Para 64)

Facts of the case:

Present appeals arise out of a judgment of a Single Judge of the High Court of Kerala dated 12 March 2021. The High Court in the exercise of its revisional jurisdiction under Section 397 of Code of Criminal Procedure, 1973, upheld the order of the Chief Judicial Magistrate, Thiruvananthapuram declining to grant permission to the Public Prosecutor to withdraw the prosecution of the first to sixth respondents under Section 321 of Cr.P.C.

Findings of Court:

Acts of vandalism cannot be said to be manifestations of the freedom of speech and be termed as “proceedings” of the Assembly. It was not the intention of the drafters of the Constitution to extend the interpretation of ‘freedom of speech’ to include criminal acts by placing them under a veil of protest. Hence, the Constitution only grants the members the freedom of speech that is necessary for their active participation in meaningful deliberation without any fear of prosecution.

Result : Appeals dismissed.